Wilderness case that changed course of federal power

It's been 30 years since the High Court's historic Tasmanian Dams decision.

It might seem as though political passions are running pretty high right now, but back in 1983 the nation was gripped in an unbelievably bitter feud over Tasmania's plans to build a hydro electric dam on the World Heritage-listed Gordon river.

In a huge victory for the environmental movement the High Court saved the wilderness. It was a victory also for Canberra, allowing it to expand its power over the states.

Transcript

Damien Carrick: Damien Carrick with you, and you're listening to the Law Report, broadcast each week on RN.

Of course in this country the US Supreme Court rulings last week were understandably overshadowed by the Gillard/Rudd battle for the Lodge and what it might all mean for our upcoming federal election.

But while we might think that Australia's political temperature is at boiling point right now, in many ways our current climate is nothing compared to what it was exactly 30 years ago. This week marks the 30th anniversary of the High Court's Tasmanian dams decision. It was the deciding moment in a bitter feud that gripped our nation. The Tasmanian government wanted to build a hydroelectric dam on the world heritage listed Gordon River. In response environmentalists set up an unprecedented blockade at the dam's building site.

Journalist [archival]: Right at this moment now five policemen have climbed onto the shore behind the three protesters who are sitting right in front of me.

Policeman [archival]: The land you are on is under the control of the Hydro-Electric Commission and you are trespassing on that land. If you do not move immediately you will be arrested. Is there any reason why you cannot be moved?

Protester [archival]: We believe we have the right to be here because we think it should be a national park.

Damien Carrick: Bob Brown, the former leader of the Australian Greens, was involved in the campaign to save the river from the very beginning.

Bob Brown: Well, the campaign actually grew over seven years, and in 1976 I first floated down the Franklin River at the request of Paul Smith who was a forester in Tasmania and couldn't find anybody else silly enough to do it. I didn't know where the river was. We took two weeks and were totally entranced by the wild beauty of the place.

After that we went back the following year and got a 16mm movie of the river. That went on to Tasmanian television, and within a year or two we had the majority of Tasmanians believing that the Franklin should be saved. But then entered the power of the Hydro-Electric Commission, which really ran the state's economy in those days. If you wanted to go and set up in Tasmania, you went to the Hydro-Electric Commission, not the government, and worked out the terms of establishing your business and what the hydro prices would be.

We knew the onslaught would be big. They had crushed the Lake Pedder campaigners ten years earlier. And by 1982, a state election, Robin Gray won the election for the Liberals, he was called 'the whispering bulldozer', he came in and within three months he had the bulldozers moving into the Franklin Valley to build the dam.

Robin Gray [archival]: It's in an area which is isolated. The environmental significance of that area has been grossly overstated. For 11 months of the year the Franklin River is nothing but a brown ditch, leech-ridden, unattractive to the majority of people. But I invite those people who've got any doubts about it to come down here and have a look at the area and they'll see for themselves exactly the misrepresentation that has occurred on the part of the conservation movement.

Bob Brown: Three newspapers in Tasmania were pro-dam, the union's were, with the exception of the ETU, big business was. We came to Canberra and the prime minister then, Malcolm Fraser, said it's a state issue, go home. So it seemed that we were at a complete losing impasse.

Then in August 1982 at a seminal national conference of the Labor Party in Canberra at the Lakeside Inn, by three votes the Labor Party changed its policy to no dams from pro-dams. This was tied up with the leadership issue, and Bob Hawke was no dams, Mr Hayden at the time, the then leader, was pro-dams. But a couple of months later the leadership change on the day that Malcolm Fraser called an election, and this was at the height of the blockade. We had a peaceful blockade at the works.

Damien Carrick: Tell me about that blockade. How many people were involved?

Bob Brown: Well, people came from all over the country and interstate. David Bellamy, the Pommy botanist, a famous naturalist on TV at the time, flew from Britain, and was arrested and spent his 50th birthday in Risdon Jail. I was in jail for three weeks. 6,000 people went to Strahan, 1,300 were arrested, 600 of those went to Risdon Jail, men and women, sometimes under very, very tough conditions.

Damien Carrick: Can you remind people who weren't maybe around at that time just how strong the passions were on each side? You've spoken about the 6,000 people who came to the blockade, you've spoken about all the people who were prepared to be arrested, but of course on the other side passions were equally high, weren't they.

Bob Brown: Yes, families were divided. The towns on the west coast in particular were divided. I was one of many people that was beaten up in the middle of the night. There were rocks through windows, cars were sabotaged. Hapless tourists who were hitchhiking at the time got beaten up because they were wearing a Greenie jacket. There were death threats. I went to head a march that ended up with 5,000 people in Launceston and the police rang me and said, 'We'd prefer you didn't come, Dr Brown, because there's been a threat that you'll be assassinated,' and I said, 'Well, I'm coming.' And the police turned out in huge numbers. There were kids skipping along at the front of this rally. But it was very tough times.

Journalist [archival]: And what will you do when the conservation groups arrive next week and start the blockade?

Man [archival]: I'll probably punch their bloody heads in I reckon.

Journalist [archival]: You mean that?

Man [archival]: Yeah, I reckon.

Journalist [archival]: Why would you become violent?

Man [archival]: Why? Well, they're taking our bread and butter off us, aren't they. We're not allowed to talk to them or anything else, but if they get on our machines and start damaging it, well, bang.

Bob Brown: It galvanised the nation, and thanks to Reg Morrison and his boat captain Denny Hamill, Reg was a piner who set up the river tourism business in Strahan and the then Mayor Harry McDermott, we were facilitated, and hundreds of blockadeers being taken up river where the Hydro-Electric Commission was bringing its bulldozers to build this dam. But what the country saw was the beauty of the Gordon and Franklin Rivers as a backdrop to us all being arrested, and it reinvigorated the whole campaign and it became a vital question at the consequent election on March 5, 1983. Bob Hawke won that election and he made one commitment that night.

Bob Hawke [archival]: I want to give you, the people of Tasmania, right from this moment my assurance that my government will honour the promises that we have made in respect to Tasmania. The dam will not go ahead.

Bob Brown: In fact a real turning point there was 15,000 people protesting against the Franklin being flooded during that campaign in Melbourne, and on the podium Bob Hawke made a commitment to oppose the dam, and Hazel standing next to him, Hazel Hawke put on triangular 'no dam' earrings, and the crowd went ballistic, and we felt we had a champion in the political arena nationally that we could rely on. And of course that's what happened. He was elected. He called on the Tasmanian premier under the world heritage powers that he had, because the Franklin and the south-west wilderness had been listed as world heritage in Paris on the first day of the blockade on 14 December 1982, he called on the Tasmanian premier to desist. The Tasmanian premier thumbed his nose at that. It went to the court…

Damien Carrick: Who took who to the court?

Bob Brown: Well, in fact the Commonwealth, the Labor Party backed by the Democrats who were pivotal to this at the time, passed the World Heritage Properties Protection Act which required Tasmania to desist. Tasmania took the Commonwealth to the court over this legislation and was joined by a number of other states in that court action. And…well, the rest is history.

Journalist [archival]: First the High Court decision on the Franklin dam. And if today's decision settled the issue of the dam itself, it has also reopened the oldest political debate in Australia, the division of powers between Commonwealth and the states.

Damien Carrick: Can we go to the actual day of the decision. What was it like in the courtroom?

Bob Brown: It was electric. We'd flown out of the coldest recorded weather ever in Tasmania, so cold it stopped the dam works, and the plane was struck with lightning as we left Melbourne. But the next day the High Court ruling or the judgements, effectively the orders of the court were handed down in the Brisbane courtroom, and it took quite some time to work out through the legalese that we had a 4-3 judgement. And at about that time there was a rising tide of excitement in the packed courtroom. A fellow in saffron robes got up and ran across the courtroom shouting, 'No dams,' and was promptly evicted. But then it became clear it was a 4-3 victory to the Commonwealth. Its external affair powers overrode the state's powers to manage the land and to build the dam.

Damien Carrick: Bob Brown, who was one of the speakers at a symposium held at Melbourne Law School last week to commemorate the High Court's momentous Tasmanian dams decision.

Another participant was Michael Black, who for many years was the Chief Justice of the Federal Court. But way back in 1983 he was the advocate for the Tasmanian Wilderness Society in the case and put its views to the High Court.

Michael Black: Section 51 of the Constitution, which is the main source of the legislative powers to the Commonwealth, allows the parliament to make laws with respect to 'external affairs'. That's 51(29) of the Constitution. And under that power, on the exercise of that power the Commonwealth had made laws in respect to the Tasmanian wilderness to give effect to obligations under a treaty that it had entered into in respect to world heritage.

Damien Carrick: So they'd signed up to this international treaty on world heritage values and world heritage properties, and then Tasmania had said no, we don't think you have constitutionally the power to do that.

Michael Black: That's right. Tasmania had legislation authorising the construction of the dam, the Commonwealth had legislation which prevented it without consent, which obviously wasn't going to be given. So there was a constitutional challenge by Tasmania to the validity of the Commonwealth legislation.

Damien Carrick: You represented the Wilderness Society in its submissions to the court. Tell me, what was the crux of your argument?

Michael Black: The argument was very short and it was based almost entirely on the earlier High Court decision in Koowarta and Bjelke-Petersen, and basically said if you apply what came out of that case to the circumstances of the Tasmanian dam case, then the law should be held to be a valid exercise of the power to make laws with respect to external affairs.

Damien Carrick: And what was that basic principle?

Michael Black: The basic principle was that it was plainly within…once the treaty obligation was there, the nature of the obligation involved, on any view, an external affair.

Damien Carrick: So the argument of the other side was this would essentially be the end of federation, there would be this limitless…the external affairs power would allow for the federal government to grab whatever it wanted under the auspices of having signed an international treaty.

Michael Black: Yes, that, putting it very, very bluntly, was the nub of it. The power couldn't be limitless in that way. Whereas all the other powers could be ample, this one had to have some limits because of its capacity to destroy, so it was put, the federal balance. And that was put quite explicitly.

Damien Carrick: The High Court did put limits on the application of the external affairs power but it felt that this legislation was well within those limits.

Michael Black: What the limits are is a difficult question, but certainly this legislation by a majority was upheld as an exercise of that power. And as I said, our argument was based upon the pre-existing case which involved the Racial Discrimination Act in Koowarta.

Damien Carrick: It's very hard from this distance to remember just how passionate both sides of the argument were. This was the central political and social issue of the day, wasn't it.

Michael Black: Yes, it was, and it put a particular burden on the High Court. As the court was careful to point out, or the Chief was, this was not about the rights or wrongs of the dam, the economic or environmental rights or wrongs, it was about a point of law.

Thirty years ago it was Canberra versus Tasmania. What about today? Do we still have these sorts of disputes between the states and the feds? Professor Lee Godden is the director of the Centre for Energy Resources and Environmental Law at the Melbourne Law School. She says the Tasmanian dams decision was the foundation stone upon which Canberra was able to build its environmental law, the Environmental Protection, Biodiversity and Conservation Act, known as the EPBC. And yes, the turf wars are still ongoing.

Lee Godden: Yes, certainly, the types of issues, the idea of environment versus sustainable development and the play-off between those areas, we are seeing those sorts of disputes run through at the moment, particularly I think some of the coal mine protests and the civil protest around those areas.

Damien Carrick: In Queensland and perhaps New South Wales?

Lee Godden: Queensland, New South Wales, and to some extent the offshore gas project in WA. So it's many of the energy developments, in the same way as Tasmanian dams was also about energy we are seeing those issues replayed, but I don't think there is the same level of widespread political unrest as we witnessed in 1983. It tends to be a little more localised.

Damien Carrick: Do you think, 30 years on, the flow of the river is still towards increased Commonwealth power at the expense of the states?

Lee Godden: No, I don't. I think in fact what we will see in the next few years is a continuation of a move to actually devolve back to the state governments. We've had a process, for example, of certification standards being developed that were to allow the Commonwealth government to devolve its approvals power under the EPBC Act. That move ultimately didn't occur, but I think it's representative of a move back to giving more power to the states, and this is evident not only in environmental protection areas, but if we think about cultural heritage protections, similar moves are afoot there.

Damien Carrick: And if the coalition attained power in the coming months, what do you think their views might be on these issues?

Lee Godden: It's not a decided policy, but I think that often the coalition government has a number of supporters who are strongly aligned to a state's interest or state's rights view, and I think we will see that devolution accelerate.

Damien Carrick: I suppose at the end of the day this Tasmanian dams dispute could be reduced to people in Melbourne and Sydney, left-wing voters, having their agenda trump the views and the aspirations of Tasmania.

Lee Godden: Well, I think that is a view that is predicated on there not being a division of opinion within Tasmania itself. So if we are thinking about…

Damien Carrick: But it was state versus Commonwealth, a left-wing Commonwealth government imposing its views on conservative Tasmanian government.

Lee Godden: I think if you actually take it up one step further it was the Commonwealth government seeking to give effect to international obligations. So if we are thinking about a trade-off that's purely Australian, then you might want to look at it in those terms. But if you take the idea that these were values that were universal, world heritage, and that these were special places…

Damien Carrick: As signed up to by the federal government.

Lee Godden: Yes, certainly by the federal government, but if you look at the Lake Pedder campaign which was the forerunner to the campaign to protect the Franklin, that was very much driven by local Taswegians, and so I think again it would be a mistake to just see this as a federal imposition of power over a Tasmanian conservative government. I think there were local resonances and very clearly the initial impetus was Tasmanian generated and it grew out of a very local conservation movement, and I think we shouldn't forget that in terms of our focus on the struggle between the Commonwealth and the state.

Damien Carrick: But back in 1983 that's certainly the way many people saw the High Court's decision. Bob Brown again:

Bob Brown: Outside a journalist asked me to shake up a bottle of champagne, 26 degrees, a very hot Brisbane day after the cold weather in Tassie, but I declined. I knew there'd be such anger from the government and the pro-dam lobby in Tasmania. And there were tears and there was dancing and great jubilation around the country. Of course in Tasmania, our home, there was a great deal of anger.

Journalist [archival]: Feelings in the Tasmanian mining town of Queenstown on the west coast have predictably been running very high today. Jobs lost by the halting of the dam will be many, and alternatives will be hard to find.

Journalist [archival]: I understand you're going back to work on Monday.

Man [archival]: We are going up river Monday, mate, we are keeping working, mate, and Bob the slob, he can send his F-111s and Mirages over, he'll have to bring an army in to get us out, with security police, and we are going up river and we're going to stay put, mate, same as the Greenies done, mate. That will make good coverage for you blokes. That's what we want. The Greenies got all their coverage, now we're going to get a bit back.

Journalist [archival]: Do many people feel the same way as you about this?

Man [archival]: Everybody in Queenstown, mate.

Damien Carrick: The dam was not built, and Bob Brown says it was the right decision environmentally and economically.

Bob Brown: We now have a world-celebrated wilderness. Outdoor magazine in the US described the Franklin a few months ago as the world's top whitewater adventure. 100,000 to 200,000 people go to the west coast, it's an economic centrepoint for the economy of one of the remotest parts of Australia. It creates jobs, and we were saved from a $2 billion extra debt if the dam had been built. And afterwards, the Hydro-Electric Commission itself admitted that the dam wasn't wanted, the figures were wrong, the projections were wrong, the Wilderness Society had been right. So whether you look at it from an economic and employment or an environmental perspective, good outcome.

Damien Carrick: It saved the dam, but was it relevant and important in subsequent environmental legal battles?

Bob Brown: It's been very important to subsequent environmental battles because it showed that if the law is there, if governments care to exercise the common wish that the environment be protected, then it can be protected. However, the exploiters, the miners, the dam builders, the loggers have a far more powerful lobby than the public interest on the environment, and the laws have got much more draconian against protest. For example, if you stand peacefully in front of a bulldozer these days in a Tasmanian Forest you face six months in jail and/or a $10,000 fine. That simply didn't exist back in those days. No wonder we don't see the mass protests out in the forests of Victoria or in the Kimberley, although I think that was shaping up last year with the gas factory there, or in the Tarkine in Tasmania which is now…I have no doubt it's a world heritage wilderness, the largest temperate rainforest in Australia, but it's about to be cut to ribbons by mining. And with federal and state government ticking off on that, that's Labor governments in both places, it is every bit as parlous a situation for the Tarkine now as it was for the Franklin in 1983.

Damien Carrick: Former Greens leader Bob Brown.

That's the Law Report for this week. Thanks to producer James Pattison, and to audio engineer Angie Grant. And I'd love to know your take on the Tasmanian dams decision 30 years on. You can contact the show via Twitter, our handle is @lawreportRN, or me personally @damien_carrick. Also do visit the Law Report online at abc.net.au/radionational.

Guests

Dr Bob Brown

Former leader of the Australian Greens

Michael Black

Former chief justice of the Federal Court who, earlier in his legal career, represented the Tasmanian Wilderness Society in the Tasmanian Dams case

Credits

Comments (4)

crank :

03 Jul 2013 9:48:41am

We can expect to see the Tasmania Dams opinion either reversed, or used as an excuse by some near-term hard Right Federal regime, to facilitate environmental destruction, rather than preservation. I mean who really expected the 1967 Aboriginal Referendum victory to be used, one day, to legislate deliberately AGAINST the interests of Aborigines, as under the Howard regime? The antics of the current crop of hard Right state regimes in desecrating National Parks, by shooting, grazing, logging and tourist development and the incessant calls by the Murdoch MSM and the Business Çommunity' to destroy 'Green tape' ie environmental protection, signal a real revanchist upsurge by the Right against environmentalism. Perversely, just as multiform ecological collapse accelerates dramatically, the Right are furiously determined to turn the clock back fifty, sixty, years and destroy environmentalism. The 'Death Wish' can hardly ever have been made more plain.

Michael Black :

03 Jul 2013 10:54:51am

One point which you might want to add a postscript about: There were two other heads of Cth legislative power held to support important parts of the legislation, both very important: s 51 (xx) corporations and s 51 (xxvi) "race". Some, including I think Prof George Williams, would argue that the upholding of the legislation as an exercise of the s 51(xx) power was the more important.

Izzy Green :

31 Jul 2013 5:06:08pm

Boo Hoo we lost the dam is all I hear champ. "Unlock Tasmania"? They key is tourism. Clearly we have issues with the education system too if folks still think mining resources will last forever. No Dams, No mines. If you're worried about lack of work.... Get a bloody education